Hemp Derived CBD is Not A Controlled Substance – The “Source Rule” Applies

by Doug WeissSeptember 10, 2018

by Bob Hoban

An Urgent Request from Bob Hoban – Hoban Law Group

As you may know, the Hoban Law Group (HLG) appeared before the Ninth Circuit Court of Appeals (in February, 2018) in San Francisco - Hemp Industry Association, et al. vs. DEA (“HIA Suit”) –concerning the issue of CBD extraction from hemp, and the legality of industrial hemp, generally. In addition, at the very same time, HLG represented the HIA against the DEA in a contempt action (“HIA Contempt”) relating to the legality of cannabinoids (CBD is one cannabinoid) from nonpsychoactive hemp material.

In HIA Suit, the Court issued a ruling which was in effect a home run for the U.S.-based hemp industry. And in HIAH Contempt, a settlement was mediated between the DEA and the HIA.

Unfortunately, both of these significant events have been misreported. I am writing you today to make sure there is clear and accurate language utilized in future stories about this issue.

Because of the FDA drug approval decision this week concerning GW Pharmaceuticals Epidiolex medication, we think there is a clear and present danger of wide misreporting and confusing these issues once again. We’d like to make some suggestions of language and advisement for this very dicey legal dance for your viewers & readers. This is important as it affects the entire hemp and cannabis industry.

This is a direct request that all journalists do their due diligence and be extremely careful when reporting on this week’s news about GW Pharmaceutical ruling from the FDA and not confuse issues about hemp, cannabis, the extraction of CBD oil,and its source and what the Controlled Substance Act does NOT include.

In the HIA Suit, the Court unequivocally determined that hemp (and its derivatives) produced domestically under the ‘Farm Bill’ is not a controlled substance. In fact, the Court found that the Farm Bill (as it relates to hemp) “preempts” the Controlled Substances Act; Congress created an exception for hemp from the Controlled Substances Act (CSA). Farm Bill hemp is not a controlled substance.

But what about CBD (or other cannabinoids)? The DEA’s briefing clearly states that the DOJ does not “seek to control cannabinoids,” and that only cannabinoids derived from marijuana (e.g., flowers and resins of a cannabis plant above .3% THC) are controlled (under the Controlled Substances Act). And the Court recognized the same. In other words, CBD (or other cannabinoids) are controlled substances only if derived from marijuana. Farm Bill hemp is not a controlled substance – without debate.

Taken further, in HIA Contempt, a Stipulation was reached (on May 22, 2018) whereby the DEA issued a directive to federal agencies (Customs and Border Patrol, in particular), which states that cannabinoids are not controlled substances unless they fall under the definition of marijuana, and that the “mere presence of cannabinoids” in any product or derivative does not render it a controlled substance.

Specifically, the DEA issued internal and external directives to Federal agencies, contain agreed-upon language, which clarified that the mere presence of cannabinoids does not render ANY material a controlled substance. In fact, this directive acknowledges the DEA’s recognition – and advisement to sister agencies to adhere to this. In other words, cannabinoids (CBD is one) are not controlled substances.

Taken together, these are all very positive things for the hemp industry, and makes it clear that Farm Bill hemp and related cannabinoids are not unlawful, or controlled substances…PERIOD.

In other words, the “Source Rule” governs. The threshold issue is whether the source of the material is lawfully derived from a lawful portion of the cannabis plant, or from hemp produced under the Farm Bill. If the source is lawful, then the derivatives or extracts are lawful under the CSA – 100%.

Here are some examples of inaccurate headlines. Even the industry itself is reporting inaccurately:

As described above, these headlines are not accurate. And we request that all journalists do their due diligence and be extremely careful when reporting on this week’s news about GW Pharmaceutical from the FDA and its relation to hemp and cannabinoids.

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